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CR.A/1316/2009 8/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1316 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
OLNO
DISTRIBUTORS,THRO'BHARATKUMAR SHAMBHULAL POPAT(THAKKAR)
Versus
STATE
OF GUJARAT & 1
=========================================
Appearance
:
MR PRATIK B BAROT for
Appellant
MR AJ DESAI ADDL PUBLIC PROSECUTOR for Respondent
No.1
MR MAHESH K POOJARA for Respondent
No.2
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 08/02/2010
ORAL
JUDGMENT
[1] The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
27.05.2003 passed by the learned Principal and Judicial Magistrate,
First Class, Radhanpur in Criminal Case No.632 of 2003, whereby the
accused has been acquitted of the charges leveled against him.
[2] The
brief facts of the prosecution case are that the appellant
original complainant was running a wholesale medical business at
Radhanpur, while the brother of the original complainant was running
a business in the name and style of Laxmi Medical Store at Palanpur.
It is alleged that through his brother, he came in touch with the
accused No.2, who had good relation with his brother, and, therefore,
accused No.2 had borrowed sum of Rs.5 Lakhs from the complainant,
against which the accused No.2 instead of handing over the cash gave
a cheque of Rs.5 Lakhs dated 16.05.2003. The aforesaid cheque came to
be deposited in the Bank and returned with an endorsement payment
stopped by drawer and account closed . It is alleged that the
appellant gave notice dated 23.06.2003 to the accused No.2 under
Section 138 of the Negotiable Instruments Act. It is also alleged
that the accused No.2 even after receiving the notice has not
bothered to return the said amount to the appellant. On the basis of
which a complaint came to be filed against the accused as Criminal
Case No.632 of 2003 in the Court of Judicial Magistrate, First Class,
Radhanpur.
[3] To
prove the case against the present accused, the prosecution has
examined the witnesses and also produced documentary evidence.
[4] At
the end of trial, after recording the statement of the accused under
section 313 of Cr.P.C., and hearing arguments on behalf of
prosecution and the defence, the learned Magistrate acquitted the
respondent of all the charges leveled against him by judgment and
order dated 27.05.2003.
[5] Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the Court of Chief Judicial, the appellant has preferred
the present appeal.
[6] Heard
Mr.Pratik Barot, learned advocate for the appellant, Mr.A. J. Desai,
learned APP for the respondent No.1 State and Mr.Mahesh Poojara,
learned advocate for the respondent No.2.
[7] It
was contended by Mr.Pratik Barot, learned advocate for the appellant
that the judgment and order of the Court of Judicial Magistrate,
First Class is against the provisions of law; the Court of Judicial
Magistrate, First Class has not properly considered the evidence led
by the prosecution and looking to the provisions of law itself, it is
established that the prosecution has proved the whole ingredients of
the evidence against the present respondent. Learned advocate for the
appellant has also taken this court through the oral as well as the
entire documentary evidence. It is submitted by the learned advocate
for the appellant that the learned Judicial Magistrate, First Class
has not properly considered the case of the appellant and only due to
absence of the learned advocate and the complainant, the said
complaint being Criminal Case came to be dismissed by the learned
Judicial Magistrate, First Class. Therefore, it is submitted that the
judgment and order of the learned Judicial Magistrate, First Class is
required to be quashed and set aside.
[8] At
the outset it is required to be noted that the principles which would
govern and regulate the hearing of appeal by this Court against an
order of acquittal passed by the trial Court have been very
succinctly explained by the Apex Court in a catena of decisions. In
the case of
M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in
(2006)6 SCC, 39,
the Apex Court has narrated about the powers of the High Court in
appeal against the order of acquittal. In para 54 of the decision,
the Apex Court has observed as under:
54.
In any event the High Court entertained an appeal treating to be an
appeal against acquittal, it was in fact exercising the revisional
jurisdiction. Even while exercising an appellate power against a
judgment of acquittal, the High Court should have borne in mind the
well-settled principles of law that where two view are possible, the
appellate court should not interfere with the finding of acquittal
recorded by the court below.
[9] Further,
in the case of Chandrappa
Vs. State of Karnataka, reported in (2007)4 SCC 415
the Apex Court laid down the following principles:
42. From
the above decisions, in our considered view, the following general
principles regarding powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
[1] An
appellate court has full power to review, reappreciate and reconsider
the evidence upon which the order of acquittal is founded.
[2] The
Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions of
fact and of law.
[3] Various
expressions, such as, substantial and compelling reasons , good
and sufficient grounds , very strong circumstances ,
distorted conclusions , glaring mistakes , etc. are not
intended to curtain extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more in the nature
of flourishes of language to emphasis the reluctance of an
appellate court to interfere with acquittal than to curtail the power
of the court to review the evidence and to come to its own
conclusion.
[4] An
appellate court, however, must bear in mind that in case of acquittal
there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
[5] If
two reasonable conclusions are possible on the basis of the evidence
on record, the appellate court should not disturb the finding of
acquittal recorded by the trial court.
[10] Thus,
it is a settled principle that while exercising appellate power, even
if two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
[11] Even
in a recent decision of the Apex Court in the case of State
of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such cases.
In para 16 of the said decision the Court has observed as under:
16. From
the aforesaid decisions, it is apparent that while exercising the
powers in appeal against the order of acquittal the Court of appeal
would not ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest illegality
and the conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be characterized
as perverse. Merely because two views are possible, the Court of
appeal would not take the view which would upset the judgment
delivered by the Court below. However, the appellate court has a
power to review the evidence if it is of the view that the conclusion
arrived at by the Court below is perverse and the Court has committed
a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to
re-appreciate the evidence to arrive to a just decision on the basis
of material placed on record to find out whether any of the accused
is connected with the commission of the crime he is charged with.
[12] Similar
principle has been laid down by the Apex Court in the cases of
State of
Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW
5553 and
in Girja
Prasad (Dead) by LRs
Vs. state of MP, reported in 2007 AIR SCW 5589.
Thus, the powers which this Court may exercise against an order of
acquittal are well settled.
[13] It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgment or to give
fresh reasonings, when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid down by the Apex
Court in the case of State
of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417,
wherein, it is held as under:
&
This court has observed
in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR
93: (AIR 1967 SC 1124) that it is not the duty of the appellate
court when it agrees with the view of the trial court on the evidence
to repeat the narration of the evidence or to reiterate the reasons
given by the trial court expression of general agreement with the
reasons given by the Court the decision of which is under appeal,
will ordinarily suffice.
[14] Thus,
in case the appellate court agrees with the reasons and the opinion
given by the lower court, then the discussion of evidence is not
necessary.
[15] I
have gone through the judgment and order passed by the Court of
Judicial Magistrate, First Class. I have first perused the rojkam
from which it appears that the complaint came to be filed on
23.07.2003 against the accused No.2 for the aforesaid offence, being
Criminal Case No.632/2003 and, thereafter, the said case was
adjourned to 26.8.2003 and on that very day complainant was absent
and accused was present before the Court. Even on 21.10.2003,
28.11.2003, 29.12.2003, 31.01.2004, 05.03.2004, both the parties
were remained absent before the Court of Judicial Magistrate First
Class. Then on 20.04.2004, accused was not present before the Court.
Thereafter, on 04.09.2004, 02.10.2004, 29.11.2004, 15.01.2005 and on
other dates of hearing, the complainant remained absent. Even on
26.06.2006, 04.08.2006, 19.08.2006, 29.09.2006, 17.11.2006,
19.12.2006, 03.02.2007, 23.03.2007, 21.05.2007, 29.07.2007,
06.09.2007, 18.10.2007 and on 01.12.2007, 17.01.2008, 27.02.2008,
17.04.2008, 10.06.2008, 24.07.2008, 02.09.2008, 07.10.2008,
29.01.2009, 06.03.2009, and 17.04.2009, both the parties were not
present before the Court of learned Judicial Magistrate, First Class.
In view of the aforesaid facts and circumstances of the case, lastly,
the Judicial Magistrate, First Class came to the above conclusion and
acquitted the accused No.2. I have also perused the oral as well as
documentary evidence led by the Court of Judicial Magistrate, First
Class and also considered the submissions made by learned advocate
for the appellant. The Court of Judicial Magistrate, First Class has
clearly recorded a finding that the complainant and his Advocate are
remaining absent. They have also not produced any evidence seeking
the adjournment and, therefore, it appears that the complainant is
not interested to prosecute his case. Therefore, the trial Court
dismissed the complaint and acquitted the accused from the charges
levelled against the accused.
[16] Learned
advocate for the appellant is not in a position to show any evidence
to take a contrary view of the matter or that the approach of the
trial court is vitiated by some manifest illegality or that the
decision is perverse or that the trial court has ignored the material
evidence on record.
[17] In
the above view of the matter, I am of the considered opinion that the
Court of Judicial Magistrate, First Class was completely justified in
acquitting the respondent of the charges leveled against him.
[18] I
find that the findings recorded by the Court of Judicial Magistrate,
First Class are absolutely just and proper and in recording the said
findings, no illegality or infirmity has been committed by it.
[19] I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence find no reasons to interfere with the same. Hence the
appeal fails and is hereby dismissed. Bail bond, if any, stands
cancelled.
[
Z. K. SAIYED,J. ]
(vijay)
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